Kelly Pisimisi,

Throughout history, all displacements that took place had their own particularities and should be treated individually without taking into consideration their principal causes. The most notorious one was the one caused during and right after World War II, mainly due to the great number of displaced persons, as well as due to the new perspective that the flows acquired. Gradually, a people-centered perspective was adopted, while handling such cases; a change that also marked a brand new legal treatment.

            The completion of at least 70 years from the adoption of the Universal Declaration of Human Rights, which is the first legal text that explicitly establishes a right to asylum (Kapferer, 2008), finds almost all States preaching their ambition to promote and protect human rights, while, at the same time, the international community watches stupefied the incessant flows of populations coming -among others from war-torn regions- and, already since 2015, our country receiving hundreds of thousands of people. Victims of such cruel flows are mostly the civilian populations, among whom one can find a great number of different vulnerable groups.

            In order to respond to such a dire situation, United Nations already, since its creation, has taken a wide range of actions, starting with the adoption of thematic Resolutions by the General Assembly, the creation of the Statute of a specific Agency (the UN High Commission of Refugees; hereinafter UNHCR) mandated to manage all these flows and to monitor the main International Conventions that deal with that matter, as envisaged therein [A/RES/428 (V); Aust,2005]; i.e. the 1951 Geneva Convention on the Status of Refugees (which was further completed by the 1967 New York Protocol).

            All these instruments -mostly the legally non-binding ones- let States to act otherwise and to undermine the international efforts to regularize the constantly increasing refugee flows. States began steadily to negotiate and to adhere to International Conventions on Human Rights, that along with the original Refugee Convention, provide now for a very thorough corpus of international norms and principles, upon which the main Regional Organizations that act in our region (principally EU and the Council of Europe) have created their own policies and frameworks (Νάσκου-Περράκη, 2016; Μαρούδα & Σαράντη, 2016).

            Although the most common cases of vulnerable refugees are those of women, unaccompanied minors or elderly people, we are not yet familiar with other variations of vulnerabilities. Unfortunately, public opinion tends to neglect the difficulties that persons with disabilities face on a daily basis.

pisimisi1.jpgSource here.

Multiple vulnerabilities in a refugee context: how are they treated both legally and operationally?

According to the definition provided in the Refugee Convention, under the refugee term can fall any person that leaves his/her own country due to a “well-founded fear of persecution”, based on specific grounds (i.e. race, religion, nationality, participation in a social group or political beliefs), and he/she is incapable of or unwilling to go back to his/her country of origin. It is easily understood, that such a status necessarily puts the person in a less favorable position and, thus, by definition it encompasses an innate vulnerability (Goodwin-Gill & Mc Adam, 2007; Μαρούδα & Σαράντη, 2016).

This assertion is further strengthened by the inclusion in the Refugee Convention of a catalog of minimum civil and political rights, that States-Parties are obliged to ensure, as well as the non-refoulment provision, which requires that the State in question shall not expulse or help refugees to be pushed back to the borders of their State of origin, if there is a standing threat to their life and freedom (art. 33 of the Refugee Convention), unless the requirements of the two explicitly cited exceptions are fulfilled (Kapferer, 2008). This principle reflects in a more tangible way the already vulnerable condition of refugees and its importance is easily proved by the inclusion of relevant -if not the same- clauses in other international and regional instruments [such as the International Covenant on Civil and Political Rights, the Convention against Torture and the European Convention on Human Rights] (Goodwin-Gill, 2014).

Unfortunately, one can easily note that among the refugees can also be found women, unaccompanied minors, elderly people, viz categories of persons that can be objectively characterized as vulnerable groups, as their status requires the adoption of specific measures, in order to respond to their individualized needs. Although States tend to treat the aforementioned categories of refugees with more empathy and sensitivity [respecting their international obligations as provided in specific international instruments such as the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child, as interpreted by the respective Committees, as well as following the Guidelines provided for by UNHCR (UNHCR Age, Gender and Diversity Accountability Report) or the UN Special Rapporteur (A/HRC/RES/33/44)] and they even have adopted national laws aiming at achieving the highest possible level of protection and at ensuring their best interests, there are also other categories that are usually neglected.

            What about refugees with disabilities? Unfortunately, refugees with disabilities represent a literally invisible category of displaced persons (Fiddian-Qasmiyeh et al, 2014), whose journey from their country of origin entails higher risks due to their personal difficulties. Their status is even more deteriorated due to the lack of consistent legal response, as the existing refugee criteria, as embodied in art. 1A (2) of the Refugee Convention, can be quite challenging for them and they usually lead to their exclusion. In fact, there is no mention to disabilities as a potential criterion that could attribute the refugee status and, therefore, only interpreting quite broadly the Refugee Convention, one could grant them protection on the ground of the participation in a particular social group (Conte, 2016).

            Nowadays, there is a steadily growing literature that highlights the particular needs of refugees with disabilities, examining the question at all stages (Fiddian-Qasmiyeh et al., 2014).

In order to clarify whether or not a person belongs to such a social group, UNHCR has conducted a set of guidelines on the matter, after having observed States’ practices either legislative, judicial or administrative) in respect. More specifically, UNHCR identifies two methods that dominate -mainly- the common law jurisprudence. On the one hand, there is the “protected characteristics” approach, in the sense that the persons of the group in question feel that they are linked due to an immutable characteristic or a characteristic that is strictly related with their personal dignity and nobody could expect for them to forsake it (UNHCR, HCR/GIP/02/02, 7 May 2002, para 6). On the other hand, there is the so-called “social perception” approach, which mandates that the persons in question should be granted protection, as they belong to homogenous groups, whose fundamental characteristic identifies them from the rest of the social groups (UNHCR, HCR/GIP/02/02, 7 May 2002, para 7). However, these two criteria should not be used independently, but instead they should be reconciled and in this vein, UNHCR itself has proposed a specific standard on the matter, which combines the aforementioned elements: “a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights” (UNHCR, HCR/GIP.02.02, 7 May 2002, paras 10-11). This effort is a small -yet not so effective- step that could form the basis for the extension of the existing legal framework in cases of refugees with disabilities (Conte, 2016).

            The self-evident legal vacuum is to be completed with the adoption of the UN Convention on the Rights of Persons with Disabilities (hereafter CRPD). CRPD for the very first time provides for a crystal clear definition of a person with a disability (art.1), disconnecting the term from the traditional and most common medical approach, and imposes on its States-Parties the obligation to ensure protection “in all policies and programs” (art.4.1c). The wording of the latter provision is quite broad and could be interpreted as encompassing those activities and policies which intend to address the refugee crisis. This interpretation is also permitted on the basis of CRPD art. 11, which provides that States-Parties shall adopt “all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters”.While this article particularly refers to International Humanitarian and Human Rights Law, it can be sustained that it necessarily refers to the existing international refugee framework as another branch of International Law. Additionally, one could reasonably claim that extreme humanitarian situations (such as armed conflicts) usually cause severe refugee flows (as happens in the wider Mediterranean region since 2015 and the intensification of the armed conflicts and internal disturbances in neighboring countries) (Conte, 2016).

            A similar approach is adopted by the UNHCR Executive Committee, which in its 2010 Conclusions reminds the importance of CRPD and highlights that “the specific needs of persons with disabilities are often overlooked, especially in the early phases of humanitarian emergencies, and that they, particularly women, children and older persons with disabilities” (Preamble). It also encourages States to adopt fair accessibility criteria and to establish adequate procedures in order to better respond to the needs of the beneficiaries (paras h & j).

pisimisi2.jpgSource here.

Although the two legal frameworks seem -at a first sight- totally irrelevant, in reality, they could be interpreted supplementarily. In this vein, while the only explicit definition of the notion of persecution is embodied in the ICC Statute (Μαρούδα & Σαράντη, 2016), one can deduce a similar one from art. 33 of the Refugee Convention. However, such a definition in conjunction with the grounds of persecution in art.1A(2) still treats discriminatory counts as something less than persecution. At this point, all stakeholders and decision-makers could use CRPD, in order to differentiate persecution and discrimination, filling the legal loopholes of the Refugee Convention (Conte, 2016). This deficiency has been pointed out both by the CRPD Committee and the Committee of the Convention on Migrant Workers in a Joint Statement, in which they admitted the imperative and usually neglected needs of refugees with disabilities and call upon States to conclude to a Global Compact, addressing such issues as well, and to take all necessary measures in order to enhance the national asylum procedures. Equally important and useful are the views of the Committee in its 3rd General Comment, in which it additionally highlights other cases of intersectional vulnerabilities, that need to be thoroughly addressed by States-Parties (such as women or girls with disabilities).

 The challenge of refugees with disabilities in the context of the Common European Asylum System and the criticism of other European human rights institutions

The discussion on the creation of a Common European Asylum System (hereafter CEAS) initiated already since 1999. A few years later, there were some basic legal instruments regulating such issues. However, the completion of all previous efforts along with the innovative ideas of better harmonizing the standards of protection through the alignment of all EU member-States’ domestic legislation, enhancing the practical cooperation among them and increasing the solidarity not only within the EU borders, but in the context of EU’s external relations, all these formed a solid foundation for a better coordination on the matter, as proclaimed by the 2008 European Commission’s Policy Plan.

            A set of Directives and Regulations was put in action, in order to respond to a continuing challenge. Most of these instruments have already been recast adapting their provisions to international standards (Μαρούδα & Σαράντη, 2016). That is also the case of refugees with disabilities. More specifically, recital 29 of the Asylum Procedures Directive includes disability as a factor that could possibly justify the need that States adopt measures for a special procedural guarantee for the protection of the asylum seeker. In addition, in the Qualifications Directive, when States are to examine an application for subsidiary protection, they should do so in full respect of the rights granted by the Refugee Convention and taking in due consideration the eventual particularities of the applicant, disabilities among others. The Directive also provides the obvious, that such a special condition shall be certified after an individual evaluation (art.21 para 3). An explicit example from the Directive itself is art.30, which imposes on States the obligation to ensure access to the healthcare system to disabled persons under the same criteria with their nationals. Sensitivity in favor of applicants with disabilities is also reserved in the Dublin Regulation, according to which dependent persons shall not be separated even during the process of the examination of the pending application (art.16) and, when a transfer is carried out, the health data of such an individual shall be provided by the transferring State, in order to better respond to his/her needs (art.32 para 1). This framework is supported by the CRPD framework, as the EU has already since 2009 signed and ratified the Convention as a separate legal entity.

            The existing legal framework is concurrently examined by the European Court of Human Rights (although EU has not yet adhered to the European Convention of Human Rights, under art.52 para 3 of the Charter of Fundamental Rights of the European Union the protection granted by both instruments is equivalent) on occasion of individual applications against member-States (even non EU members). For instance, in the case of S.H.H. v. the United Kingdom, an application which deals with a disabled refugee from Afghanistan that was to be sent back to his country of origin after the rejection of his asylum claims before the competent British authorities, the Court opted for maintaining its previous jurisprudence (See N. v. the United Kingdom) and reject the application, because, although there could be an eventual future harm on the applicant’s health, but such a problem would be caused by the lack of resources and not by any intentional acts or omissions of the state authorities (See S.H.H. v. the United kingdom, para 92). The Court’s reasoning takes into consideration the CRPD standards and interprets the ECHR in the light of the CRPD, but it was still incapable to acknowledge that in the present case the high threshold of ECHR art.3 was indeed met, as the circumstances described by the applicant were not quite exceptional (See paras 94-95; Webster, E.).

            On the contrary, in the Asalya v. Turkey case, the Court admitted that, although the detention of a Palestinian asylum seeker, that was to be deported, was not per se a kind of torture. However, it could amount to a breach of ECHR art.3 and be considered as a form of degrading or inhuman treatment, because the lack of special equipment in the detention center could in no way ensure civilized and dignified living conditions.

 Bibliography

  1. Books

 Aust, A. (2005). Handbook of International Law. Cambridge University Press.

Conte, C. (2016). What about Refugees with Disabilities? The Interplay between eu Asylum Law and the un Convention on the Rights of Persons with Disabilities. European Journal of Migration and Law, 18(3), pp.327-349.

Fiddian-Qasmiyeh, E., Loescher, G., Long, K. and Sigona, N. (2014). The Oxford handbook of refugee and forced migration studies. Oxford University Press.

Goodwin-Gill, G. & Mc Adam, J. (2007). The Refugee in International Law. Oxford University Press.

 Goodwin-Gill (2014). Non-refoulement, temporary refugee and the “new” asylum seeker. In: Cantor and Durieux, ed., Refugee from Inhumanity? War Refugees and International Humanitarian Law, Brill Nijhoff.

Kapferer, S. (2008). Article 14(2)of the Universal Declaration on Human Rights and Exclusion from International Refugee Protection, Refugee Survey Quarterly, Volume 27, Issue 3.

Webster, E. (2013). Non-nationals, living conditions and disability: Situating S.H.H. v. the United Kingdom within Strasbourg’s Article 3 case-law. Strasbourg Observers. Available here.

Μαρούδα, Μ.-Ντ. & Σαράντη, Β. (2016). Προσφυγικό Δίκαιο. Νομική Βιβλιοθήκη.

Νάσκου-Περράκη, Π. (2016). Δικαιώματα του Ανθρώπου. Παγκόσμια και Περιφερειακή Προστασία. Θεωρία και Νομολογία. Εκδόσεις Σάκκουλα, Αθήνα-Θεσσαλονίκη.

  1. International Instruments

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). Available here.

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5. Available here.

UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137. Available here.

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171. Available here.

UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267. Available here.

UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13. Available here.

UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85. Available here.

UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3. Available here.

UN General Assembly, Convention on the Rights of Persons with Disabilities, 24 January 2007, A/RES/61/106. Available here.

  1. Jurisprudence
  1. v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008.

S.H.H. v. The United Kingdom, Application no. 60367/10, Council of Europe: European Court of Human Rights, 29 January 2013.

Asalya v. Turkey, Application no. 43875/09, Council of Europe: European Court of Human Rights, 15 April 2014